News

Occupation orders and family law questions

November 9, 2016

Senior Partner Marilyn Stowe spoke about occupation orders and unmarried couples buying property in her latest appearance on local St Albans radio station Radio Verulam this morning. She also discussed a variety of other family law matters.

Mrs Stowe was asked for advice about buying a house with a partner before marriage. She explained that, in the eyes of the law, they are not connected people. Before buying the property the listener should get some legal advice, Marilyn urged, and must consider what would happen to the house and its contents if the relationship broke down without them getting married beforehand.

She was also asked about the threat of domestic violence. Marilyn explained to the listener that this was a crossover between family law and criminal law and advised the listener to contact the police.

Mrs Stowe also fielded questions on hidden finances, harassment from an ex-partner and dying without a will.

PR: My husband has been threatening me with physical violence for over 6 months although has not yet hurt me. I need to get out to protect my safety and want a divorce. What are my options? What should I do?

MJS: This is a case where we have actually got a crossover between family law and criminal law. Let’s start with criminal law first because coercive and controlling behaviour is now a crime. It was introduced by Section 76 of the Serious Crime Act in 2015 and it came into force on the 29th December last year. So where somebody is describing this type of behaviour; threatening and it is consistent and there is a pattern of it, it can constitute a crime. So my first advice to this lady would be to go to the police to complain about that controlling and coercive behaviour. The second thing she can do is consider getting a divorce but she may well be able to qualify for legal aid. Domestic violence, abuse and the conduct that she is complaining of could well mean that if she qualifies financially, if she’s very worried that she can’t afford it, she may be able to get legal aid and go forward. Whether or not she gets legal aid, she can apply in a civil court for an occupation order to remove him from the home. My advice to her and to anybody else suffering this, and it is not just one way, it can be the other way as well, women are just as nasty as men, is to not stand for it. Consider both criminal and civil remedies.

PR: I am going to begin divorce proceedings against my wife very soon. I have noticed that over the past 2 years she has been gradually moving money and assets out of our accounts and out of my reach. I fear that when we divorce these funds won’t be declared and I will lose out. Can I trace these assets and prove they exist although they have disappeared?

MJS: Don’t worry too much. In law there is an absolute duty of full, frank and honest disclosure of finances all the way through until the thing in finally heard and agreed. So she does have that obligation and it is a strict obligation and can result in criminal charges if it’s ignored. People think ‘well it’s only my husband or my wife, it won’t matter’, it does matter. Now, where you know somebody is not disclosing assets, you can file and application to the court and you can file a questionnaire and ask the court to order disclosure and trace what happened to assets since they were in a certain account and move forward. They will be ordered to show exactly what has happened since being in that account to date. Now, the court won’t do that if it was 25 years ago and it is really not going to make much difference. But where they’ve got sums of money which are quite substantial in the case; not talking about five pounds or ten pounds, something that’s quite clearly substantial the court will order somebody to disclose what’s happened to it. The other problem is where people don’t know about the accounts, that is a more tricky thing to do. A good lawyer will be trained to deal with that. In our firm, we’ve got a team of forensic accountants, part of whose job it is the track down assets. So, please don’t try and take it into your own hands. Get some good legal advice and then go forward from there.

PR: Myself and my boyfriend wish to purchase a small property as we begin our lives together. Would you recommend putting any legal paper work in place to protect my half of the purchase in the event of our relationship finishing?

MJS: I think that any divorce lawyer, any family lawyer will always look at this from the worst outcome. What happens if somebody splits up? What happens if it doesn’t work out? What you have to remember is unless and until you are married, you are not treated in law as connected people. You are simply two people who both have rights under the law. Property law is very strict. If you buy a house together but one person contributes unequally, they may well find that if the house comes to be sold if they split up, that they lose the money that they have invested into the house. What they must consider, when buying a house, is the basis on which they buy it, they should have a declaration of trust to explain what will happen if the house is sold and they must make a will. They have got to consider the ramifications, not just the roses around the door and think we’re buying a house and how romantic that is. It is a legal transaction, a legal process and they must get good legal advice to protect themselves and make sure that when and if the property comes to be sold exactly what they intend happens. That is also the case with paying outgoing and what happens to the contents and so on if they do split up. We lawyers are doing a serious job and we are giving serious advice. Even though and hopefully it will all be fine, we have all come across cases where it isn’t fine. So, please do get good legal advice.

PR: My ex-husband keeps turning up at my new house since we have divorced. Sometimes it’s in the middle of the night and he often demands money. He is a nuisance and is threatening. Can I take out an injunction against him to prevent him having any contact with me? If I can, and if he breaks the terms of an injunction, what would happen then?

MJS: Well this lady mentioned that it can happen in the middle of the night, he is threatening, he’s a nuisance and can she take out an injunction. The first thing I thought about was again another form of criminal offence; which is harassment and stalking. That is an offence and it is an offence that puts people in fear of violence where there is a repeated pattern of behaviour. It seems to me that he could fall well into the definition of harassment and stalking. Therefore, she too should consider going to the police. Yes, she can get an injunction to keep him away but I’d have thought a criminal route in a case like this where it is a public service that the police perform and therefore won’t cost her any money. I’d have thought that be the appropriate route. My advice to her is to go to the police and tell them. And keep a log, go with your evidence. Don’t just turn up a say you can’t remember. The police can only act on evidence, so write it all down and go and see them.

PR: A what would happen if he ignored it? First of all she calls the police and he gets arrested?

MJS: Yes, absolutely and he could go to prison. Nobody wants to be up in front of the Magistrates or worse, the Crown Court. At the end of the day, the law is there to protect people from this type of behaviour. So, that would be my advice.

PR: My mother has recently passed away. She told our family verbally what was in her will and where she had left it. We cannot find the will anywhere and her lawyer hasn’t heard of one either. What can be done here so we can follow my mother’s wishes?

MJS: In the absence of a will, property passes under what is called the Intestacy Rule. The first £320,000 of somebody’s estate is tax free so what would I suggest they do is, there is a gov.uk inherits someone dies without a will website, they can go on that. It actually tells them what happens in the event of someone dying without a will. If all of the beneficiaries get together and agree that they want to do something different, they may be able to execute what is called a deed of variation to alter the terms of how it should go. But they all need to consent. I would suggest that they take legal advice and go from there.

Click here to listen to the full interview (available for the next seven days – Wednesday 10am 00:39:00)

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